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Friday, 5 February 2016

in content-creation industries. Truth be told, the treatment of such a clearly functional creation as software as a literary work has always required a bit of analytical sleight-of-hand. In any event, the role of network effects is far-removed from the context in which most works of copyright are created and commercialized. Against this background, it is worth pausing a moment to consider how The Economisthas chosen to elaborate on the “wider” significance of the December 2015 launch of the movie, “The Force Awakens”, the latest and probably the most profitable installment of the Star Wars saga. Intellectual property, in general, and copyright, in particular, may be doing harm to our reservoir of content creation.

Kat readers with no direct memory of the circumstances of the screening of the initial movie in 1977 may be hard-pressed to appreciate the impact that the movie had on a broad swathe of movie-goers worldwide. To say that it broke new ground barely captures the impact that it had on the film industry and the viewer experience. It is no secret that the Star Wars series, in all of its forms of commercial exploitation, has made a ton of money for Lucasfilm (and now Disney). But no one is forced to go to a Star Wars movie or buy a movie-themed toy. It is a tribute to Hollywood bringing together this combination of experiential and commercialization success.

Not so fast, Kat readers. According to The Economist--

“… Disney has skilfully capitalized on their intellectual property—and in so doing, cemented its position as the market leader in the industrialisation of mythology.”

In its view, this movie, like many other Disney creations,

“…draw[s] on well-worn devices of mythic structure to give their stories cultural resonance. Walt Disney himself had an intuitive grasp of the power of fables. George Lucas, the creator of Star Wars, is an avid student of the work of Joseph Campbell, an American comparative mythologist who outlined the “monomyth” structure in which a hero answers a call, is assisted by a mentor figure, voyages to another world, survives various trials and emerges triumphant. Both film-makers merrily plundered ancient mythology and folklore. The Marvel universe goes even further, directly appropriating chunks of Greco-Roman and Norse mythology. (This makes Disney’s enthusiasm for fierce enforcement of intellectual-property laws, and the seemingly perpetual extension of copyright, somewhat ironic.)”

What Disney (and Lucasfilm) have done is “plunder” time-honored myths with cross-cultural resonance. The Star Wars series is a less impressive creative enterprise than it seems. The really “creative” contribution of Star Wars has been to successfully package these myths by cleverly exploiting modern technology and the expanding possibilities of product merchandising and theme parks. As such, Disney and Lucasfilm are using intellectual property not to protect their relative modest creative contributions, but to gain a leading position in the way that some of our most fundamental cultural heritage is being used for entertainment and commercial purposes. People need to find ways to relate to their most deeply-felt myths, and Disney is increasingly dominating the way that this is being done.

What exactly is the claim here? Is it that because the movie is making abundant use of cultural myths, and the creative contribution is alleged to be modest, Disney should be more measured about the enforcement of its copyright? That is an odd way to view the situation. After all, copyright law has various means to deal with this kind of thing, such as the idea/expression dichotomy and the notion of scène à faire. If Disney oversteps the bounds of its protected copyright, and the courts are correctly applying the appropriate legal principles, then efforts to claim copyright protection in cultural myths will be denied. But it seems that the root of the magazine’s complaint is not legal but moral. Someone like Disney, which makes good money (at the moment) from generating popular contents, should be showing more gratitude. The ultimate problem is not legal but a flaw in corporate character—being less “fierce” (how much less so is not clear) in protecting its intellectual property rights is one way that the company could be saying thank you to the cultural antecedents that have enabled it to successfully create its products.

But the criticism is not merely about a flaw in corporate character, but also the veiled

suggestion that Disney’s increasing presence in the market for creations about myth may have a dampening effect. Using intellectual property as a sword, the ultimate result is that fewer creations might be made than would be the case if intellectual property was being properly applied. Seen in this way, the criticism by The Economist is an extension of the attack that it mounted in August 2015 regarding the alleged deleterious effect of patents on innovation. When it applied to Disney, at least, we can now add to the black list the harm being done to the market for creations that make use of cultural myths.

9 comments:

Anonymous
said...

"The Star Wars series is a less impressive creative enterprise than it seems."

Personally I'd disagree with that. These myths have been lying around for thousands of years, readily available for everyone to utilize. It appears to me that whoever can take them and make something different from them and make as colossal a commercial and artistic success as the "Star Wars" franchise has been has indeed been impressively creative. Saying otherwise appears to me to smack of sour grapes.

Don't know about "abysmal", but it has, rightly or wrongly, consistently maintained its academic economist "monopolies are inherently bad" position since its founding (by opponents of the Corn Laws). I don't agree with many of its positions, but the other side of the argument hasn't exactly covered itself with glory either.

Thanks for bringing up the doctrine of scène à faire. I believe I’ve only run across mention of it once before, and it’s an important consideration when dealing with cultural creation issues. Fan fiction, etc. But the term that really made my morning is “the industrialisation of mythology” -- Spot on.It could be the tag line for Disney.

I don't see the "spot on" hit of the term "industrialisation of mythology."

The plain fact of the matter is that the entertainment industry has been "industrialising" like forever - and JUST like (exactly like) ANY OTHER industry that wants to (gasp) make money.

There is nothing inherently sacrosanct or off limits about "mythology" that mandates that such is off limits to attempts to make money.

The notion here that such is inherently off-limits smacks of a liberal paternalism that frankly, I find offensive - and perhaps just as offensive as that liberalism finds the attempt to make money off of mythology.

The mythology does NOT belong to the commons, or even worse, some self-appointed "keepers" of the commons. Thank you, but please keep your "nannyism" habits to yourself.

"The “monomyth” structure in which a hero answers a call, is assisted by a mentor figure, voyages to another world, survives various trials and emerges triumphant."

I would venture to suggest that almost every fantasy and/or science fiction author ever has merrily plundered that structure at one time or another. Why should film makers be any different? I also find it a distinct stretch to suppose that Disney's alleged IP sword (wonderful image though that is) has or will result in fewer creations being made. Or if it does, I would further suggest that that is more to do with marketing clout than improperly applied IP laws.

A comparison of many of Disney's movies with their respective source material stories suggests that they are sufficiently different as to be entitled to be treated as original works.

Disney created the characteristics (and names) of the Seven Dwarves, which were originally simply referred to as "seven little men". In the original Hans Christian Anderson tale of "The Little Sea Maid" on which the Little Mermaid was based, she did not gain the love of her prince, and was therefore transformed to a daughter of the air, condemned to bring relief in the form of cooling breezes to people in hot countries for 300 years in order to earn a soul and be admitted to Paradise. The original Pinocchio story was extremely violent and had to be drastically amended to make it suitable for modern children's viewing. Most modern works relating to King Arthur (such as "The sword in the stone") seem to be based in the bowdlerised Victorian version of King Arthur's court: Mallory's Morte D'Arthur, which Mallory acknowledges is based on various French sources, is full of sex and violence, and Merlin, far from being the amiable old chap he is usually depicted as, was a lecherous son of the devil.

Anyone is free to plunder these original, out of copyright, sources and come up with their own versions that they might think are more suitable for modern audiences, which is what Disney did. Disney's promotion of the "Mickey Mouse Act" copyright term extension is another matter.

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